Can a criminal defense lawyer take possession of a client's hidden contraband to destroy it or turn it over to authorities?

Plain-English summary

The opinion addresses a court-appointed defense lawyer whose jailed client reveals that contraband is hidden in a hat held in the jail's inmate-property repository, apparently undiscovered by law enforcement. The lawyer asks whether he may take the contraband to destroy it, turn it over to authorities, or pass it to a third party for delivery to authorities.

On possession, the opinion concludes no. A lawyer may not engage in criminal conduct or assist a client in conduct the lawyer knows is criminal (Rule 1.2(d), Rule 8.4(d)). Because possession of contraband is itself a crime, the lawyer may not take possession of the item or facilitate its transfer to another in furtherance of a crime. Drawing on ABA Criminal Justice Standard 4-4.6, the opinion explains that if a law requires the lawyer to disclose the contraband's location, the lawyer must do so after notifying the client and explaining the consequences; if no such law applies but the contraband is evidence in the pending case or the subject of a known criminal investigation, the lawyer must discuss the matter with the client and recommend surrendering the item, perhaps as part of a plea, while if the client refuses and no law requires disclosure, the lawyer may not disclose its location unless a confidentiality exception applies.

On disclosure, the opinion works through the Rule 1.6 exceptions. Rule 1.6(b)(1) permits disclosure required by law or the Rules; absent a legal requirement, Rule 8.4(d) (no conduct prejudicial to the administration of justice) and Rule 3.4(a) (not unlawfully obstructing access to evidence) may permit disclosure where the contraband is evidence in the pending case or an investigation, in which case the lawyer should minimize harm to the client, for example by using the information in plea negotiations. The committee finds the other exceptions generally inapplicable: whether possession is a complete or continuing crime under Rule 1.6(b)(2) is a legal question it does not decide; Rule 1.6(b)(3) does not apply unless the item is a weapon or otherwise dangerous; and Rule 1.6(b)(4) does not apply because the lawyer's services were not used to commit the client's crime. Regardless, the lawyer must warn the client of the risk to any family member or friend who takes the hat and of the legal and practical consequences of any course, including abandonment. The opinion expressly declines to decide whether the duty of candor in Rule 3.3 requires disclosure to a tribunal at a plea hearing, calling it fact- and forum-specific.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the bright line is that a lawyer may never take possession of contraband or help move it in furtherance of a crime (Rules 1.2(d), 8.4(d)). Per the opinion, what the lawyer may or must do about the location turns on the facts: comply if a law requires disclosure (after advising the client); consider disclosure under Rule 8.4(d) and Rule 3.4(a) if the item is evidence in the pending case or an investigation; otherwise keep the information confidential unless a Rule 1.6(b) exception applies.

Per the opinion, the lawyer must warn the client about the risk to any family member or friend who retrieves the property and about the consequences of each option, and the committee declines to decide whether Rule 3.3 candor requires disclosure at a plea hearing.

Common questions

Q: Can a defense lawyer take a client's hidden contraband to get rid of it?

A: No. The opinion concludes that because possession of contraband is itself a crime, the lawyer may not take possession of the item or facilitate its transfer in furtherance of a crime (Rules 1.2(d), 8.4(d)).

Q: Does the lawyer have to tell the police where the contraband is?

A: Only in defined circumstances. The opinion concludes the lawyer must disclose if a law requires it (after advising the client), and may disclose under Rule 8.4(d)/Rule 3.4(a) if the contraband is evidence in the pending case or an investigation; otherwise confidentiality controls unless a Rule 1.6(b) exception applies.

Q: Can the lawyer let the client's family retrieve the hat from the jail?

A: The lawyer must warn of the risk. The opinion concludes that regardless of whether the lawyer may disclose, the lawyer must advise the client of the potential risk to a family member or friend who takes possession, and of the consequences of any course, including abandonment.

Q: Must the lawyer disclose the contraband to the court at a plea hearing?

A: The opinion does not decide. It expressly declines to opine on whether the Rule 3.3 duty of candor requires disclosure to the tribunal, because the answer varies with the facts and the forum.

Background and rules framework

The opinion applies North Carolina Rule 1.2(d) (not assisting client crime or fraud), Rule 8.4(d) (no conduct prejudicial to the administration of justice), Rule 1.6 (confidentiality, including the Rule 1.6(b) exceptions), and Rule 3.4(a) (not unlawfully obstructing access to evidence), and notes but does not resolve Rule 3.3 (candor to the tribunal). These track the corresponding Model Rules. It draws practical guidance from ABA Criminal Justice Standard 4-4.6 on a defense lawyer's handling of physical evidence and contraband.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / NC Rule 1.2(d) (not assisting criminal or fraudulent conduct)
• MR 8.4 / NC Rule 8.4(d) (conduct prejudicial to the administration of justice)
• MR 1.6 / NC Rule 1.6, 1.6(b)(1)-(4) (confidentiality and exceptions)
• MR 3.4 / NC Rule 3.4(a) (not unlawfully obstructing access to evidence); MR 3.3 / NC Rule 3.3 (candor, not resolved)

Other opinions cited:

• NC RPC 221 (handling items connected to a client's conduct), compared.
• ABA Standards for Criminal Justice, The Prosecution and Defense Function, Standard 4-4.6 (3rd ed. 1993): defense counsel's handling of physical evidence and contraband.

See also

• TX Ethics Op. 690: Criminal Defense Lawyer Holding Tangible Evidence
• CO Bar Op. 60: A Client's Incriminating Physical Evidence
• NY State Bar Op. 405: Disclosing the Location of Stolen Property

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2007-formal-ethics-opinion-2/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Defendant was arrested for drug trafficking and placed in jail. At the time of his arrest, Defendant was wearing a hat. The hat was confiscated by the police and put in the jail's repository for inmates' personal property along with Defendant's other clothes. Defendant was unable to post bond and remains in jail.

Attorney is appointed to represent Defendant. In an attorney-client consultation at the jail, Defendant tells Attorney that there is contraband hidden in the hat. It appears that the contraband has not been discovered by law enforcement or the jailers.

Attorney anticipates that Defendant will be convicted, probably by plea, and will be sentenced to prison. At that time, he will be asked about the disposition of his personal property. Personal clothing is not sent with inmates to prison; it is usually given to family or friends.

May Attorney take possession of the contraband for the purpose of destroying it, turning it over to the authorities, or giving it to a third party, such as another lawyer who would be subject to the duty of confidentially, to be delivered to the authorities?

Opinion #1:

No. Attorney may not take possession of an item that is contraband nor may the lawyer facilitate its transfer to any other person in furtherance of a crime.

A lawyer should not engage in criminal conduct under any circumstance and may not assist a client in conduct that the lawyer knows is criminal. See Rule 1.2(d) and Rule 8.4(d). If possession of an item is itself a crime, as in the case of contraband, a lawyer may not take possession of the item. Compare RPC 221.

Standard 4-4.6 of the ABA Standards for Criminal Justice, The Prosecution and Defense Function, 3rd ed. (1993), provides the following guidance:

(a) Defense counsel who receives a physical item under circumstances implicating a client in criminal conduct should disclose the location of or should deliver that item to law enforcement authorities only: (1) if required by law or court order, or (2) as provided in paragraph (d).

...

(d) If the item received is contraband, i.e., an item possession of which is in and of itself a crime such as narcotics, defense counsel may suggest that the client destroy it where there is no pending case or investigation relating to this evidence and where such destruction is clearly not in violation of any criminal statute. If such destruction is not permitted by law or if in defense counsel's judgment he or she cannot retain the item, whether or not it is contraband, in a way that does not pose an unreasonable risk of physical harm to anyone, defense counsel should disclose the location of or should deliver the item to law enforcement authorities.

(e) If defense counsel discloses the location of or delivers the item to law enforcement authorities under paragraphs (a) or (d), or to a third party under paragraph (c)(1), he or she should do so in the way best designed to protect the client's interests.

If there is a law requiring Attorney to disclose the location of the contraband to the authorities, Attorney must do so after notifying the client and explaining the legal consequences to the client. If there is no such law but the contraband is evidence in the pending case against Defendant or Attorney knows that there is a criminal investigation relative to the contraband, Attorney must discuss the matter with the client and recommend that the hat be surrendered to law enforcement, perhaps as a part of Defendant's plea bargain. If Defendant refuses and there is no law requiring disclosure to the authorities, Attorney may not disclose the location of the contraband to the authorities or anyone else unless an exception to the duty of confidentiality applies. See RPC 221.

Inquiry #2:

May Attorney disclose the location of the contraband to the authorities or to the family member or friend who is asked by Defendant to retrieve his personal property from the jail?

Opinion #2:

Rule 1.6(a) prohibits a lawyer from revealing information acquired during the professional relationship with a client unless the client consents, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by an exception set forth in paragraph (b) of the rule. The following exceptions might apply in this situation:

(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:

(1) to comply with the Rules of Professional Conduct, the law, or court order;

(2) to prevent the commission of a crime by the client;

(3) to prevent reasonably certain death or bodily harm; or

(4) to prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services were used.

With regard to the exception in Rule 1.6(b)(1), if there is a law requiring Attorney to disclose the location of the contraband, she must do so as noted in opinion #1 above. If disclosure is not legally required, Rule 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice, may permit disclosure if the contraband is evidence in the pending action against Defendant or the subject of a criminal investigation. See also Rule 3.4(a) (lawyer should not unlawfully obstruct access to evidence). If Attorney determines that this exception to confidentiality applies, Attorney should take steps to minimize the harm to Defendant. This would include encouraging Defendant to permit Attorney to use the information in plea negotiations.

The other exceptions to the duty of confidentiality may not apply. Whether the crime of actual or constructive possession of contraband is complete or continuing is a question of state or federal law; therefore, no opinion is expressed as to whether disclosure would be allowed to prevent the commission of a crime pursuant to Rule 1.6(b)(2). Unless the contraband is a weapon or some other dangerous item, disclosure is not necessary to prevent reasonably certain death or bodily harm as contemplated by the exception in Rule 1.6(b)(3). Finally, Attorney's services were not used to perpetrate Defendant's crime and disclosure is not necessary to rectify the consequences of Attorney's conduct as contemplated by the exception in Rule 1.6(b)(4).

Regardless of whether Attorney may disclose information relative to the contraband, Attorney must advise Defendant of the potential risk to a family member or friend who takes possession of the hat. Similarly, Attorney should advise Defendant of the legal and practical consequences of any course of action that he takes, including abandoning the hat and its contents.

No opinion is expressed on whether a lawyer with information about a client's possession of contraband is required to disclose that information to the tribunal in a plea hearing pursuant to the duty of candor in Rule 3.3. The resolution of this issue will vary substantially depending upon the facts of the particular case and upon the forum in which the lawyer is appearing. See, e.g., United States Sentencing Guidelines §3E1.1 (making it a condition of a plea that the defendant "truthfully [admit] or not falsely [deny] any additional relevant conduct for which [the] defendant is accountable").